Beynon v Sands Family Trust t/a Fair Deal Car Sales [2024] QCAT 102

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Beynon v Sands Family Trust t/a Fair Deal Car Sales [2024] QCAT 102 PARTIES: KRIS BEYNON (applicant) v SANDS FAMILY TRUST T/A FAIR DEAL CAR SALES (respondent) APPLICATION NO/S: MVL183-22 MATTER TYPE: Motor vehicle matter DELIVERED ON: 5 March 2024 HEARING DATE: 1 September 2023 HEARD AT: Brisbane DECISION OF: Member D Brown ORDERS: The application is dismissed. CATCHWORDS TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION – CONSUMER PROTECTION – GUARANTEES, CONDITIONS AND WARRANTIES IN CONSUMER TRANSACTIONS – whether motor vehicle of acceptable quality – where vehicle sold second hand as “used car” and vehicle manufactured 15 years prior to purchase – whether failure to comply with consumer guarantees a major failure – whether reasonable efforts were made to deliver the vehicle to the warrantor – whether consumer able to reject vehicle where seller has not had fair opportunity to repair. Motor Dealers and Chattel Auctioneers Act 2014 (Qld), s 4(2), s 7(1)(a), s 7(1)(b), s 8, s 9(2), s 12, Schedule 1 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 9, s 10, s 92 Fair Trading Act 1984 (Qld), s 50A Australian Consumer Law (Queensland), s 54, s 56, s 259, s 260 Australian Competition and Consumer Commission v Jayco Corporation Pty Ltd (2020) FCA 1672 Cary Boyd v Agrison Pty Ltd [2014] VMC 23 -- 1 of 13 -- 2 Holt-Lea v O’Connor & Anor (2022) QCAT 363 Sazdanoff-Haynes v MLS Wholesales Pty Ltd (2023) QCAT 37 Williams v Toyota Motor Corporation Australia Ltd [2022] FCA 344 APPEARANCES & REPRESENTATION: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) REASONS FOR DECISION Background [1] On 19 August 2022 Mr Kris Beynon (‘the applicant’) purchased a 2007 BMW E87 1 Series Hatchback from Sands Family Trust trading as Fair Deal Car Sales (‘the respondent’) for $12,500.00. The vehicle had an odometer reading of 108,040 at the time of the sale. A roadworthy certificate was supplied with sale of the vehicle completed on 9 August 2022. The vehicle had an odometer reading of 108,033 km, at the time of the roadworthy certificate being completed. [2] On 31 August 2022 the applicant took the vehicle to Motorline BMW for a service. The odometer at the time of the service was 108,579, demonstrating the applicant had driven 589km in the 11 days. The service invoice has a number of recommendations, including two items which required further diagnosis, being a gear box oil fault and blocked washer jets. [3] The applicant sent an email to the respondent on 31 August 2022 requesting a refund equal to the value of the recommend repairs plus the overdue service and raised concerns about the entertainment system. On 1 September the applicant sent a second email to the respondent requesting a full refund of the purchase price. The emails were sent to a “sales@fairdealcarsales” email address. This is different to the email address in the contract for sale which was an “admin@fairdealcarsales” email address. [4] Following these two emails, these proceedings were commenced by the applicant on 6 September 2022 filing in the Tribunal an application – Motor Vehicle Dispute. [5] The applicant is seeking to return the vehicle for a full refund of the purchase prices and asking the dealer to pay for the service costs. The application seeks the amount of $13,590.80, claimed under s 50A of the Fair Trading Act 1984 (Qld) (‘Fair Trading Act’) and Schedule 1, s 14 of the Motor Dealers and Chattel Auctioneers Act 2014 (Qld) (‘Motor Dealers Act’). [6] The concerns with the vehicle were that: (a) it was sold in an unroadworthy condition as: (i) Tyres were worn below passable levels; (ii) Suspension bump stops absent/perished; (iii) Washer jets block and recurring “low washer fluid” warning light in cabin; (iv) Coolant radiant and top hose leak; -- 2 of 13 -- 3 (v) Power steering cap seal weeping and Driver belt cracking. (b) Other faults were identified as: (i) No communication with rear park sensors; (ii) Gearbox oil wear fault; (iii) Supplied with non–licenced aftermarket blade/key; (iv) Rocker covers leaking oil; (v) Vacuum pump seal leaking; (vi) Oil-soaked coolant hose; (vii) Font compression bushes cracked; (viii) Rear diff bush cracked; (ix) vehicle 3000km overdue for service at time of sale; (x) Gear box hesitation fits and stuttering at random. Vibration/feedback on gear section; and (xi) In car display and selector malfunctions at random. [7] The applicant asserts: (a) A BMW is a luxury vehicle and there is a need for accurate monitoring of all vehicle systems. Any slight deviation from these precision tolerances could take away from the driving experience and cause harm to the vehicle or driver; (b) Highly trained engineers and specialist equipment are required to accurately maintain and diagnose BMWs. From the service report it is evident that the roadworthy certificate did not have the appropriate due diligence completed by the dealer to allow the buyer to make an informed decision about its condition before purchase; (c) The expert opinion from a recognised BMW dealership and their trained mechanic is that this vehicle should not have passed the roadworthy certification test; (d) The cost of repairs is likely to appropriate or exceed the insured value of $5,800. The proceedings [8] Directions were made on 26 October 2022 in relation to service of the application (which was complied with), filing of a Response of counter claim (which was complied with) and filing of any further material that the applicant or respondent intend to comply with, which was not complied with by either party. [9] Accordingly, the evidence in this matter is limited only to the application and the response. [10] The Application lodged on 6 September 2022 is a 42 page documents which includes in addition to the standard QCAT application form: (a) A copy of the safety certificate dated 9 August 2022; -- 3 of 13 -- 4 (b) Copies of emails sent by the applicant to the respondent on 31 August 2022 and 1 September 2022; (c) A service tax invoice dated 31 August 2022; (d) Tax invoice, contract and Motor vehicle form 12 for the sale of the vehicle on 19 August 2022. [11] The Response lodged on 14 December 2022 is a 50-page document which includes in addition to the standard QCAT Response form: (a) The contract, sale documents and roadworthy certificate; (b) Invoice from 2 August 2022; (c) Copies of email communication between the applicant and the respondent from October 27 to 10 November 2022. [12] The respondent asserts: (a) They fulfilled their legal obligations by sending the vehicle to a licensed mechanic who completed a roadworthy safety certificate, and they have no reason to believe that the certificate was not accurate; (b) The applicant did not comply with the statutory warrant and did not return the vehicle to the dealership for them to review it, despite repeated requests for him to do so; (c) As the applicant never returned the vehicle to the dealership the respondent cannot comment on if repairs would be required and/or any costs of repairs. [13] In Directions issued on 26 October 2023 the Tribunal also sought the parties file submissions addressing whether the matter could be determined on the papers or required an oral hearing. In January 2023 the applicant provided a statutory declaration that he wished the matter to be determined on the papers. The respondent requested the proceedings be determined by oral telephone hearing. [14] Accordingly, the matter was set for hearing on 1 September 2023. [15] The applicant attended the hearing by way of video conferencing. He was traveling in a motor vehicle at the time and then arrived at the airport to catch a flight. [16] The respondent did not attend. Attempts were made to contact the representatives of the respondent company by telephone numbers held on the Tribunal file. Some of the numbers were unanswered or went to voice mail. However, the Tribunal were able to get hold of David Holstein, who was noted on the material before the Tribunal to be the Director. [17] Mr Holstein advised the Tribunal that he was unaware of this Tribunal matter, and he had not written the emails under his hand, and they would have been written by someone else in the company. He advised there had been issues with the company and he was no longer a director and could not speak on behalf of the company. [18] Mr Holsten was excused, and a further attempt was made to contact a representative of the respondent company by phone. There was no appearance for the respondent company Fair Deal Car Sales and no ability to contact any other representative by phone. There was evidence before the Tribunal that a Notice of Hearing dated 19 July -- 4 of 13 -- 5 2023 had been sent by the Tribunal to the applicant and to the respondent. That Notice informed the parties that the hearing was to be conducted by telephone with the Tribunal on 1 September 2023 and 9:30am. [19] In these circumstances the Tribunal was satisfied that the respondent company had been given a notice of hearing in accordance with s 92 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’). [20] Noting it was only the respondent who requested an oral hearing, and the applicant has been satisfied this matter could be determined the on the papers with the material filed, and given the applicant was in the airport, and unable to properly participate in a hearing on 1 September, the matter was adjourned for a decision on the papers. This is that decision. The Jurisdiction of the Tribunal in Motor Vehicle Disputes [21] The Tribunal is empowered to hear and determine disputes in accordance with the QCAT Act and the “enabling Act”.1 [22] The applicant brings these proceedings relying on both s 50A of the Fair Trading Act and Schedule 1, s 14 of the Motor Dealers Act. [23] In these proceedings the applicant seeks to recover payment made by him to the respondent and to recover compensation for costs incurred to service the motor vehicle. [24] The Motor Dealers Act provides for a statutory warranty for “warranted vehicles” sold by a motor dealer in particular circumstances. These statutory warranties are in Schedule 1 to the Motor Dealers Act and warrant that: (a) the vehicle is free from defects at the time of taking possession and for the warranty period; and (b) defects in the vehicle reported during the warranty period will be repaired by the warrantor free of charge.2 [25] A warranted vehicle is defined in Schedule 1, s 3 of the Motor Dealers Act as a “motor vehicle”3 other than an unregistered vehicle, a motor vehicle sold on consignment, a commercial vehicle, a caravan, or a motorcycle. The 2008 BMW vehicle the subject of these proceedings does not fall within any of the exceptions and is a “motor vehicle” within the meaning of s 12 and therefore a warranted vehicle. [26] The BMW is a Class B warranted vehicle pursuant to Schedule 1, s 3B of the Motor Dealers Act as it had a build date of more than 10 years before the date of the sale. Therefore, the warranty period was until the vehicle travelled 1,000km since taking possession, or 1 month after taking possession, whichever occurred first.4 [27] In this case the applicant identified concerns within a 1-month period and the vehicle had only been driven 589km at the time of the service, and the concerns were 1 QCAT Act, ss 9, 10. 2 Motor Dealers Act, Schedule 1, ss 7(1)(a), (b). 3 Ibid, s 12. 4 Ibid, Schedule 1, s 4(2). -- 5 of 13 -- 6 attempted to be raised with the respondent company on the same date of the service. Therefore, the issues with the BMW were raised within the warranty period. [28] Section 50A of the Fair Trading Act provides that the Tribunal has jurisdiction in relation to motor vehicle matters where an application is brought under a relevant provision of the Australian Consumer Law (Queensland) (‘ACL’) against a supplier or manufacturer for failure to comply with statutory guarantees, and no more than $100,000 is sought. The Tribunal may make only the following orders: (a) require a party to pay a stated amount to another person; (b) that a stated amount is not owing by the applicant or by any party to the proceeding to the applicant; (c) requiring a party to the proceeding, other than the applicant, to perform work to rectify a defect in goods; (d) requiring a party to the proceeding to return goods to a stated person; or (e) combining 2 or more of the above orders. [29] A Table of provisions provides for certain proceedings to be bought under the provisions of the ACL and which proceedings include the following: (i) an action against supplier of goods to recover an amount of loss or damage and recoverable reasonable costs incurred by a consumer or to recover damages because failure to comply with a guarantee. (s 236(1), s 259(2), (3) & (4)). [30] Pursuant to s 259 of the ACL5 if the failure to comply with the guarantee cannot be remedied or is a major failure the consumer may reject the goods and seek a refund.6 If the failure to comply with the guarantee can be remedied and is not a major failure the consumer must require the supplier to remedy the failure within a reasonable time and only if there is a failure to remedy can the consumer seek reasonable costs or seek to reject the goods.7 [31] In this case the applicant is seeking the amount of $13,590.80, which is well within the 100,000 limit. Accordingly, the Tribunal therefore has jurisdiction to hear the applicant’s motor vehicle dispute with the respondent and to determine whether the applicant can obtain relief sought by him in the Application – Motor Vehicle Dispute filed in the Tribunal under both the Fair Trading Act and the warranty under the Motor Dealers Act. Statutory Warranty under the Motor Dealers Act [32] The Motor Dealers Act provides for a statutory warranty for “warranted vehicles” sold by a motor dealer in particular circumstances. These statutory warranties are in Schedule 1 to the Motor Dealers Act. It is accepted that there is a Class B warranty in this matter in relation to the BMW. 5 Schedule 2 of the Competition and Consumer Act 2010 (Cth). 6 Ibid, s 259 (3). 7 Ibid, s 259 (2). -- 6 of 13 -- 7 [33] Certain defects are excluded under the statutory warranty8 including defects of the audio entertainment system, a tyre, a radiator hose, oil or an oil filter, distributor point or wiper rubbers. Accordingly, any claims for defects of these items must fail under the Motor Dealers Act. [34] Section 9 provides the Buyer’s obligations under the statutory warranty which includes: (1) If the buyer of a warranted vehicle believes the vehicle has a defect the warrantor of the vehicle is obliged to repair under this part, the buyer must give the warrantor written notice of the defect (defect notice) before the end of the warranty period and— (a) if the warranted vehicle is 200km or less from the warrantor’s place of business when the defect notice is given—deliver the vehicle to— (i) the warrantor to repair the defect; or (ii) a qualified repairer nominated by the warrantor, by signed writing given to the buyer of the vehicle, to repair the defect; or (b) if the warranted vehicle is more than 200km from the warrantor’s place of business when the defect notice is given— (i) deliver the warranted vehicle to the qualified repairer nominated by the warrantor by signed writing given to the buyer of the vehicle and nearest to the vehicle to repair the defect; or (ii) deliver, at the warrantor’s expense, the warranted vehicle to another qualified repairer nominated by the warrantor by signed writing given to the buyer of the vehicle to repair the defect. [35] The buyer is taken to have delivered the vehicle and the warrantor is taken to have possession of the vehicle if the buyer makes reasonable efforts to deliver the vehicle under this section but is unable to do so because the warrantor, or the qualified repairer nominated by the warrantor, refuses to accept delivery of the vehicle.9 [36] There is no evidence in this matter that the vehicle was not within 200k of the business. [37] Notwithstanding the issue with the email address, where the applicant emailed the respondent company at an email address different to that provided in the contract as the Selling agent’s details, the Tribunal accepts that the applicant made reasonable attempts to give the respondent written notice of the defect within the warranty period. Despite the respondent’s assertion they did not receive the initial emails and only became aware of the defect concerns when they were served with the QCAT material, no issue appears to have been taken with the fact the applicant did seek to inform them within the warranty period of one month after the sale date of 19 August 2022. [38] Upon receipt of the QCAT material, the respondent made attempts to resolve the matter with the applicant and have made a number of requests for the applicant to call them to discuss the issue and to bring the vehicle back to the dealer for inspection. 8 Motor Dealers Act, Schedule 1, s 8. 9 Ibid, s 9(2). -- 7 of 13 -- 8 The respondent company made it clear in the email communication that they do want to fulfill their obligations, but they want the opportunity to inspect the vehicle and take it back to the licenced mechanic who completed the roadworthy certificate to give them the opportunity to address the concerns that the applicant raised in the service report, as is their right in law. [39] The applicant never returned the vehicle to the dealers and asked initially for a full refund with the funds to be transferred and available to him before he would return the vehicle. The applicant also stated he would allow a licenced mobile roadworthy technician to attend the site where the vehicle was and provide a 100-point safety check and roadworthy condition report. When again requested by the respondent to bring the vehicle back to the dealers so it could be inspected the applicant stated: …But sure David, If you want to cry wolf that I’ve denied your rights so be it. Send me the address and I’ll have the vehicle dropped off to your mechanic so you can waste more of my time. I’m sure that will go over well at the Tribunal. [40] When the respondent replied requesting the vehicle be returned to the dealership of Fair Deal Car Sales as they are entitled to, and stated they can, arrange for it to be taken to the mechanic from there to save the applicant the trouble, the applicant responded: ….Australian consumer laws is quite clear and considering it has been what, 4 months since you were made aware of the problems, and you did nothing, I’d say your rights to inspect and provide a remedy have been more than provide you just have acted on it [sic]. [41] This was on 10 November 2022 which was not a period of 4 months. Even working on when the applicant sent the first email on 31 August 2022 (which the respondent asserts they had not received), this was only 10 weeks (just under 2 1/2 months) and regardless of the period of time, this does not take away the applicant’s obligation to return the vehicle or remove the seller’s right to inspect the vehicle and provide a remedy. [42] In all that time, the applicant had never returned to the dealers to discuss the issues with them or allow them to inspect or be given the opportunity to repair the motor vehicle. There is also no evidence that the applicant made any effort to take the vehicle to the respondent’s mechanics as he had proposed. The applicant has the address of the mechanic as it was at the bottom of the road safety certificate attached to both the application and the response material filed in the Tribunal and the respondent provided the address in their email dated 10 November 2022 at 11.58am. [43] Despite the applicant stating in his email on 27 October 2023 that he appreciated that oversights like defunct emails do happen, and the applicant making an oversight himself by sending the initial emails about the motor vehicle to an address other than what was in the contract, the applicant was clearly angry/frustrated about the initial emails not being responded to. The applicant made comments in his email communication including: (a) “why should I be further inconvenienced because you can’t manage your email boxes”; (b) “apparently basic email monitoring and management is beyond your capacity”; and -- 8 of 13 -- 9 (c) that he did not return to the dealership because “you choose to ignore me, and here we are. This isn’t on me; this is all on you”. [44] The applicant has stated the reasons why they did not take the motor vehicle back to the dealers to be inspected and to give them the opportunity to remedy and/or repair the vehicle were: (a) The respondents had failed to fix a faulty dial that controls the car entertainment system; (b) The respondents sold a vehicle when it was overdue for a major service and after the service, he became aware of all the roadworthy issues, so he does not trust the company to competently assess the vehicle. He referenced this is particularly so given the person who was fixing the audio system lay across the driver’s seats and was wearing thongs while trying to fix the system with a screwdriver; (c) He reached out to them to fix the issue using a valid contact method (email) that they failed to address due to nothing more than incompetence. [45] These explanations are not only not supported by evidence (in that there is no evidence provided of the issue in relation to the entertainment system and no evidence the vehicle was overdue for a major service, and the applicant’s assertion he used a “valid” contact method is questionable when he did not use the contact details for the respondent prescribed in the contact) but they are not sufficient to excuse the applicant of his legislative obligation under s 9 of the Motor Dealers Act. [46] In these circumstances the Tribunal is not satisfied that reasonable arrangements were made by the applicant for the return of the motor vehicle to give the respondent a proper opportunity to inspect and repair the vehicle. The respondent has remained at all times willing to receive the vehicle for inspection and appear willing to remedy any issues and undertake repairs on the vehicle, if necessary. The applicant has however refused to return the vehicle for the respondents to complete their own assessment of the defects or to repair, in breach of his obligations and the explanation provided by the applicant does not satisfy the Tribunal in all of the circumstances that reasonable attempts were made for the return of the motor vehicle. [47] As there has been non-compliance with the applicant’s obligation to deliver the vehicle back to the respondent’s dealership as stated in the Motor Dealers Act, there is no remedy available to the applicant pursuant to the Motor Dealers Act and accordingly the applicant’s claim made in reliance upon the Motor Dealers Act is dismissed. Relief under the Fair Trading Act and ACL [48] In order for the applicant to seek a refund for the vehicle, as sought in the application, there needs to be a failure to comply with the guarantee and the failure needs to be a major failure and/or unable to be remedied. [49] Subdivision A of the ACL sets out the guarantees relating to supply of goods. The relevant guarantees in this matter are under s 54, a guarantee of acceptable quality, and s 55, that the goods, being the BMW, are fit for purpose. [50] Goods are defined as being of “acceptable quality” if they are: (a) fit for all the purposes for which goods of that kind are commonly supplied; -- 9 of 13 -- 10 (b) acceptable in appearance and finish; (c) free from defects; (d) safe; and (e) durable. [51] The test of acceptable quality requires a test in terms of the what the reasonable consumer fully acquainted with the state and condition of the goods (including any hidden defects of the goods) would regard as acceptable having regard to the following matters: (a) the nature of the goods; (b) the price of the goods; (c) any statements made about the goods on any packaging or label on the goods; (d) any representation made about the goods by the supplier or manufacturer of the goods; and (e) any other relevant circumstances relating to the supply of the goods.10 [52] The construction and interpretation of s 54 of the ACL was considered in Williams v Toyota Motor Corporation Australia Ltd11 where Justice Lee stated: Despite the obscure drafting of other provisions of the ACL, s 54 is relatively straightforward. The continued use of the conjunction “and” in s 54(2) makes clear that goods must possess all of the qualities listed in s 54(2), to the requisite standard, in order to comply with the guarantee of acceptable quality. Failure to possess any one of those qualities will result in failure to comply with the guarantee… The question of whether the goods are of acceptable quality is to be determined by reference to the quality of the goods at the time of supply. [53] Whether the goods (in this case the BMW) were of acceptable quality has to be determined “at the time of supply”.12 In these proceedings the relevant date for the assessment of the acceptable quality of the goods is the time of sale of the vehicle on 19 August 2022. [54] Whether goods are of acceptable quality is not an absolute but rather is a flexible standard depending upon the application of provisions in s 54(2) and (3). This approach has been discussed in Australian Competition and Consumer Commission v Jayco Corporation Pty Ltd13 by Wheelahan J: The standard of acceptable quality prescribed by s 54(2) is not absolute, or a standard of perfection. It is tempered by what a reasonable consumer would regard as acceptable having regard to the several matters in s 54(3). These 10 Ibid, s 54(3). 11 [2022] FCA 344 at paragraph (164). 12 Holt-Lea v O’Connor & Anor (2022) QCAT 363 at paragraph (29); Sazdanoff-Haynes v MLS Wholesales Pty Ltd (2023) QCAT 37 at paragraph (38). 13 (2020) FCA 1672 at paragraph (27). See also Sazdanoff-Haynes v MLS Wholesales Pty Ltd (2023) QCAT 37 at paragraph (39-40). -- 10 of 13 -- 11 matters render the standard of acceptable quality elastic, and context specific: Contact Energy Ltd v Jones (2009) 2 NZLR 830 at (95) (Miller J). The significance of the components of the guarantee of acceptable quality will therefore vary with the circumstances of each case.14 [55] The nature of the vehicle is that it was sold second hand as a “used car”. It was not new and not sold as a new car or a near-new demonstrator vehicle, which is reflected in its price. The vehicle was manufactured approximately 15 years prior, had travelled 108,040 kms, and was purchased for $12,500. Accordingly, at the time of sale it could be regarded as an old vehicle which had travelled a significant distance in its 15 years of use. [56] The nature of motor vehicles is such that the older they are, and the more they have been driven, the more likely it is that parts will fail and require repair. [57] Given the purchase price and the “Used” BMW having been built 15 years prior and travelled over 100,000 km, a reasonable consumer would anticipate that there would likely be some mechanical defects or repairs required to such a vehicle. [58] Other relevant circumstances of the supply are that it was sold without a warranty from the respondent, other than those warranties specifically provided by law. Following its purchase, the vehicle was operational and able to be driven, so that by 31 August it has travelled 108,579 km. [59] The only evidence about the motor vehicle is a service tax invoice. The applicant has not provided any expert evidence about any defects of the vehicle, other than some recommendations in the service invoice. There is no information as to what repairs are required to be made to the vehicle, what the cost of any repairs may be, and whether any repairs have been undertaken since the applicant took possession of the vehicle in August 2022. The onus of providing such evidence is on the applicant. [60] The applicant’s evidence is that the vehicle was not safe and had defects. However, apart from the applicant’s assertion in the documents that the vehicle was not safe, there is no evidence, particularly from the mechanical reports, that the vehicle was unsafe. There was no evidence before the Tribunal that the repairs identified in the service tax invoice fall outside the scope of repairs ordinarily to be expected of a vehicle of that age and odometer reading, and which could be classed as defects or would make the vehicle not fit for purpose. [61] To seek the refund of the purchase price as sought, there needs to be evidence, not only that there was a breach of guarantee, but that either the guarantee cannot be remedied or that it is a “major failure”. Noting the lack of evidence about how the vehicle can be repaired, and any associated costs, the Tribunal could not make a finding that even if there is a breach in guarantee it cannot be remedied. The only avenue of the applicant would be to demonstrate that there has been a major failure. [62] “Major failure” is defined to include circumstances where the goods would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure or are unfit for purpose or not of acceptable quality as they are unsafe.15 14 Ibid, at paragraph (27). See also Sazdanoff-Haynes v MLS Wholesales Pty Ltd (2023) QCAT 37 at paragraph (39-40). 15 ACL, Schedule 2 of the Competition and Consumer Act 2010 (Cth), s 260. -- 11 of 13 -- 12 [63] In this case the applicant asserts there are a number of issues with the motor vehicle. A failure to comply with a guarantee referred to in section 259(1)(b) that applies to a supply of goods is also a major failure if: (a) the failure is one of 2 or more failures to comply with a guarantee referred to in section 259(1)(b) that apply to the supply; and (b) the goods would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of those failures, taken as a whole.16 [64] It has been held that an accumulation of individually minor defects can be aggregated to amount to a major failure giving rise to a right to reject the goods. In Cary Boyd v Agrison Pty Ltd [2014] VMC 23 at [51], the Court held that… “despite the use of ‘a’, to suggest the singular, ‘a major failure’ might be constituted by a series of specific and individual defects which taken as a whole constitute one major failure”. [65] The test of whether there is a major failure for the purposes of s 260 and the test for whether goods are of acceptable quality for the purposes of s 54 both adopt a ‘reasonable consumer’ benchmark. [66] The BMW vehicle was sold with a Roadworthy Safety Check and Safety Certificate. The applicant asserts that “according to the expert opinion from a recognised BMW dealership and their trained mechanics, this vehicle should not have passed roadworthy”, however no evidence of this has been provided to the Tribunal. The only evidence from a BMW dealer is a service tax invoice. The applicant has not provided any expert evidence on the safety or roadworthiness of the vehicle or of the cost for any repairs. [67] The service invoice demonstrates a relatively standard service of the vehicle, servicing the engine oil, microfilter, spark plugs, air filter, and brake fluid, and doing standard checks on the vehicle, and the only mention of the vehicle’s roadworthy status is that this was checked as part of the test drive checks. No opinion was provided as to whether the vehicle was or was not roadworthy, either at the time of the service or at the time of sale of the vehicle on 19 August 2022. [68] It is unclear what has occurred with the vehicle since September 2022 and whether the applicant has continued to drive the motor vehicle. He has refused to allow either the first or the second respondent the opportunity to repair it and there is no evidence that he has sought an alternative mechanic to conduct repairs. [69] The applicant asserts that the tyres were worn below passable levels, which raises a safety concern. It is noted that despite this safety concern, the applicant did not have any of his tyres replaced as part of the service completed on 31 August 2022 and replacement of tyres is not one of the recommendations in the service invoice. While the tread depth is noted in the service invoice, in particular tread of the right hand front tyre, noting the vehicle had been driven over 580 kms since it was purchased, it is not possible to know if the tyres were under the legal limit at the time of purchase and thereby unsafe, or whether the subsequent 580 kms has caused the tread to go below the legal limit. [70] Given there is no evidence to support the contrary, the Tribunal finds that the BMW vehicle was fit for all purposes for which that vehicle is commonly supplied. There 16 Ibid, ss 260(2)(a), (b). -- 12 of 13 -- 13 were no specific representations made by the respondent company in terms of the vehicle and there is no evidence that it was not of acceptable appearance, safe and durable at the time of supply. [71] Accordingly, there is insufficient evidence to satisfy me that the motor vehicle experienced a major failure. While recommendations are made in a service invoice, there is no evidence given the age of the vehicle that this falls outside of what is expected for a 15 year old BMW or that any of these defects or issues result in a major defect and or could not be easily repaired. [72] This is the applicant’s application, and it is his responsibility to provide evidence to support his application. While it is unclear on the evidence whether there is any breach of warranty in terms of the vehicle, this is not necessary for the Tribunal to determine, as in terms of the applicant seeking a refund, there is no evidence that the motor vehicle is unrepairable or that there was a major defect, and accordingly the applicant has no claim under s 259(3). [73] The ACL provides remedies in the event that there is not a major failure, and the supplier does not remedy the failure with a reasonable time (s 259(2)(b)(ii)). However, in this case, the applicant refused to provide the vehicle to the respondent company to view after raising concerns about the quality of the vehicle, despite multiple requests by the respondent for him to do so. Accordingly, I find that the supplier has not been provided with a reasonable opportunity to repair the vehicle, and so this provision is not applicable. [74] Accordingly, the applicant has no claim under the ACL or s 50A of the Fair Trading Act. Orders [75] As the applicant has no legitimate claim under s 50A of the Fair Trading Act or the ACL or Schedule 1, s 14 of the Motor Dealers Act, there is no legal basis for the relief sought by the applicant and the Application – Motor Vehicle Dispute filed in the Tribunal by the applicant on 6 September 2022 is dismissed. -- 13 of 13 --